BALASUNDARA ACHARI Vs. SHANMUGAM & ANOTHER

JUDGEMENT

(1.) The civil revision petition is filed against the order made in I.A. No.1387 of 2007 in O.S. No.104 of 2006 dated 25.10.2010 on the file of the District Munsif Court, Madurantagam, dismissing the petition filed by the petitioner herein under Order 23 Rule 1(3) CPC, seeking leave of the court to withdraw the suit with liberty to institute fresh suit on the same cause of action.

(2.) The petitioner as the plaintiff filed the above said suit initially for bare injunction. Subsequently, the plaint was amended and the relief of declaration and consequential relief of permanent injunction were introduced by way of such amendment. The trial has commenced and P.W.1 was examined in chief. After the cross-examination of P.W.1, the petitioner filed the above said application for withdrawal of the suit mainly by contending that there are formal defects in the plaint with regard to the measurement as well as the length and breadth of the suit property and the nature of possession. Therefore, the petitioner sought permission to withdraw the said suit with liberty to file fresh suit based on the same cause of action.

(3.) The court below rejected the said application on the ground that the petitioner has not shown sufficient cause for withdrawal of the suit and the defect is not a formal one. The court below has also pointed out that the nature of possession and failure to show length and breadth cannot be treated as formal defects.